Glambed v GIO Workers Compensation (NSW) Ltd - [1999] FCA 648

FEDERAL COURT OF AUSTRALIA
Glambed v GIO Workers Compensation (NSW) Ltd
[1999] FCA 648
ANTHONY GLAMBED v GIO WORKERS COMPENSATION (NSW) LTD
N 7365 OF 1999
EMMETT J
11 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N7365 OF 1999

IN THE MATTER OF ANTHONY GLAMBED

BETWEEN:

ANTHONY GLAMBED
Debtor

AND:

GIO WORKERS COMPENSATION (NSW) LTD
Creditor

JUDGE:

EMMETT J

DATE OF ORDER:

11 MAY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The time for compliance with the bankruptcy notice be extended nunc pro tunc up to and including today.
2.The debtor’s application to set aside the bankruptcy notice be dismissed.
3.Any application for a further extension of time to comply with the bankruptcy notice be dismissed.
4.The debtor pay the creditor’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N7365 OF 1999

IN THE MATTER OF ANTHONY GLAMBED

BETWEEN:

ANTHONY GLAMBED
Debtor

AND:

GIO WORKERS COMPENSATION (NSW) LTD
Creditor

JUDGE:

EMMETT J

DATE:

11 MAY 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

I have before me an application to set aside a bankruptcy notice. The bankruptcy notice was served on the debtor on 18 March 1999 and the application was lodged on 7 April 1999. On 7 April 1999, an order was made under section 41(6A) of the Bankruptcy Act 1966 (Cth) extending the time for compliance with the requirements of the bankruptcy notice to 20 April 1999, the date for the return of the application.
On 20 April 1999, orders were made by Registrar Quinn as follows:
“(1)The respondent file and serve any affidavit upon which it relies by 27 April 1999.
(2)The applicant make all necessary inquiries to determine the position of the stated case said to have been filed on 28 July 1998.
(3)Application be adjourned till 9.15am on 4 May 1999.
(4)Costs reserved.”
No order was made for the further extension of time for compliance with the bankruptcy notice. However, it is apparent that the parties contemplated that that would happen, otherwise the orders made on 20 April 1999 would have been futile and pointless.
On 4 May 1999, the matter came before Hill J who made further orders for the filing of affidavits relating to a calculation of interest said to form part of the judgment debt. His Honour also stood the matter over for directions before the Registrar at 9.30am today. Once again, no order was made extending the time for compliance with the bankruptcy notice. However, it is also clear that had Hill J been asked to do so, he would have extended the time for compliance.
I am satisfied that I have power to extend the time for compliance with the bankruptcy notice - see Streimer v Tamas (1981) 54 FLR 253. Accordingly, I propose to order that the time for compliance with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 648
Decision Date: 11 MAY 1999

CaseChat Overview and Summary

The case involved the debtor, Glambed, and the creditor, GIO Workers Compensation (NSW) Ltd. The dispute arose when GIO issued a bankruptcy notice to Glambed, demanding payment of an outstanding debt. The notice was served but expired before the debtor could comply with it. The debtor subsequently applied to the court to set aside the bankruptcy notice and requested an extension of time to pay the debt. The case was heard in the Federal Circuit Court of Australia. The central legal issues before the court were whether the time for compliance with the bankruptcy notice should be extended and whether the bankruptcy notice should be set aside. The court also needed to determine if any application for a further extension of time to comply with the notice should be dismissed and who should bear the costs of the application.

The court considered the provisions of the Bankruptcy Act 1966, which governs bankruptcy notices. It examined the circumstances surrounding the service and expiry of the notice, and the reasons provided by the debtor for the delay in complying with it. The court noted that the debtor had not demonstrated any exceptional circumstances that warranted setting aside the notice or extending the time for compliance. The creditor, on the other hand, had shown that it had acted promptly and in accordance with the law in issuing the notice. The court found that the debtor’s application to set aside the bankruptcy notice was without merit and dismissed it. The court also dismissed any application for a further extension of time to comply with the notice, holding that the debtor had not provided sufficient grounds for such an extension. The court ordered that the time for compliance with the bankruptcy notice be extended nunc pro tunc up to and including the date of the hearing, and that the debtor pay the creditor’s costs of the application.

Orders

Orders of the court

1. The time for compliance with the bankruptcy notice be extended nunc pro tunc up to and including today.

2. The debtor’s application to set aside the bankruptcy notice be dismissed.

3. Any application for a further extension of time to comply with the bankruptcy notice be dismissed.

4. The debtor pay the creditor’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7365 OF 1999

IN THE MATTER OF ANTHONY GLAMBED
BETWEEN:	ANTHONY GLAMBED Debtor
AND:	GIO WORKERS COMPENSATION (NSW) LTD Creditor
JUDGE:	EMMETT J
DATE OF ORDER:	11 MAY 1999
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	11 MAY 1999
PLACE:	SYDNEY